Published on August 26, 2014.
Did Chief Justice Maria Lourdes Sereno overreach?
I have not had a chance to read the supplemental comment submitted by the Judicial and Bar Council in the since-resolved administrative matter involving Francis Jardeleza, the solicitor general at the time and now the newest associate justice of the Supreme Court. But a report in Rappler attributes the following statement to Sereno, also the chair of the JBC:
“Petitioner [that is, Jardeleza] cannot be trusted to act in the best interests of his client, the Republic of the Philippines, as its agent in the Unclos [UN Convention on the Law of the Sea] arbitration… His disloyalty to his client is a lack of integrity. And when that client is the Republic of the Philippines, it is treason.”
Strong words, especially when we consider that treason is a wartime offense. I do not know if the jurisprudence has changed, but the influential words of Justice Gregorio Perfecto, concurring in the ruling of the 1947 case of Laurel vs Misa, continue to make powerful reading: “Treason is a war crime. It is not an all time offense. It cannot be committed in peace time. While there is peace there can be no traitors. Treason may be incubated when peace reigns. Treasonable acts may actually be perpetrated during peace, but there are no traitors until war has started.”
Sereno questioned Jardeleza’s integrity because her former colleague at the University of the Philippines College of Law sought to delete a total of 14 paragraphs in the petition, the so-called memorial, that the Philippines filed with the arbitral tribunal handling the Philippine case against China. Jardeleza had wanted to exclude Itu Aba, the largest of the Spratlys, which both the Philippines and China claim but which has been administered for many years by Taiwan, from the scope of the case. He was eventually overruled by his immediate superior, Justice Secretary Leila de Lima.
But nothing in the report, or in other stories I’ve read, led me to think that Jardeleza had tried to push his view by underhanded means; he was, after all, the government’s chief lawyer, and was only doing his duty. Senior Associate Justice Antonio Carpio, supporting Sereno, argued before the JBC against Jardeleza’s position.
His position: In other words, what we have here is a policy difference; it’s a serious one, but none of the reports I’ve read did justice to Jardeleza’s side. Would excluding Itu Aba (in the process mollifying Taiwan) strengthen the country’s efforts on the diplomatic front? Would including it guarantee legal victory? These seem to be reasonable questions, and positions on the other side could be justified.
Why, then, did Sereno, the chief custodian of the Constitution, cry treason?
I am one of many Filipinos who support the government’s case against China, as a principal means to delegitimize expansive Chinese claims to most of the South China Sea. But surely there are many nuances to our own claim; lawyers, especially lawyers of Jardeleza’s experience and quality, should be expected to test the limits of our arguments. But the accusation of treason is troubling, because it assumes either (a) we are in an undeclared state of war with China or (b) lawyers with different views on the South China Sea from Sereno and Carpio are traitors-in-incubation.
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I may be biased for Jardeleza, who was my constitutional law professor in UP (it was his very first class). But then I, like many others, welcomed Sereno’s appointment as chief justice; I, like many others, thrilled to read Carpio’s arguments demolishing China’s extravagant claims. I have nothing but respect for the principal figures in this controversy.
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Here’s an interesting perspective-shifting experiment: Read a solidly anti-American point of view on the Jardeleza controversy. An essay in the World Socialist Web Site (wsws.org), for instance, predictably sees the controversy as an unexpected but unsurprising window into “Washington’s machinations.”
Joseph Santolan writes: “As a result of… Jardeleza’s contentious nomination, information leaked to the media over the past week has revealed a great deal about the nature of Manila’s case against Beijing before the International Tribunal on the Law of the Sea (Itlos), and also plainly exposed the puppet strings of Washington at play in the country’s corridors of power.”
Note, first, the supercilious claim that information was leaked to the media, as though everything was secret. But in fact, much of the information came from copies of petitions, comments, opinions shared with the public through reporters.
Note, secondly, the remarkable claim, elaborated in the essay: Jardeleza’s position on Itu Aba was opposed by the Americans!
“This was unacceptable to Washington and they swung into action immediately. Within the day, Paul Reichler was in the Philippine presidential palace of Malacañang demanding to speak with Aquino. [Santolan fails to note that that demand was not met.] Washington’s overriding concern is to use the Itlos to formally establish the ‘illegality’ of China’s claims in the South China Sea, which in turn can be utilised to ratchet up pressure on Beijing and mount new provocations over territorial disputes with its neighbours. Manila’s deteriorating relations with Taipei are of little consequence to the US.”
In other words, to some of those who see the Philippines as little more than the United States’ accommodating colonial partner in Asia, Jardeleza was standing up for Philippine interest. Those who succeeded in including the Itu Aba claim were carrying water for the Americans. I do not agree with this view, but it does invite us to look at our own lenses.